Nano-Second Technology Co Ltd v. Dynaflex International

Filing 69

PROTECTIVE ORDER by Magistrate Judge Margaret A. Nagle re Stipulation for Protective Order 60 (ec)

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

8
9
10
11

NANO-SECOND TECHNOLOGY
CO., LTD., a Taiwanese corporation,

12

Plaintiff,
13
14
15
16
17

v.

Case No. CV 10-9176 RSWL (MAN)
PROTECTIVE ORDER ENTERED
PURSUANT TO THE PARTIES’
STIPULATION

DYNAFLEX INTERNATIONAL, a
California corporation,
Defendant.

18
19
20

And Related Counterclaims

21
22
23

Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure and based on the

24

parties’ Stipulation and [Proposed] Order Governing Use and Dissemination of

25

Confidential Information filed on October 6, 2011 (collectively, the “Stipulation”), the

26

terms of the protective order to which the parties have agreed are adopted as a

27
28

PROTECTIVE ORDER

1

protective order of this Court (which generally shall govern the pretrial phase of this

2

action) except to the extent, as set forth below, that those terms have been

3

substantively modified by the Court’s omission of Paragraphs 1 and 2 of, and

4

amendment of Paragraphs 5, 6, 20, 21, 23, and 34 of, and Exhibit A to, the

5

Stipulation.

6

The parties are expressly cautioned that the designation of any information,

7

document, or thing as “CONFIDENTIAL,” “HIGHLY CONFIDENTIAL,”

8

“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” or other

9

designation(s) used by the parties, does not, in and of itself, create any entitlement to

10

file such information, document, or thing, in whole or in part, under seal.

11

Accordingly, reference to this Protective Order or to the parties’ designation of any

12

information, document, or thing as “CONFIDENTIAL,” “HIGHLY

13

CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY,”

14

or other designation(s) used by the parties, is wholly insufficient to warrant a filing

15

under seal.

16

There is a strong presumption that the public has a right of access to judicial

17

proceedings and records in civil cases. In connection with non-dispositive motions,

18

good cause must be shown to support a filing under seal. The parties apparently have

19

endeavored, through the good cause statement set forth in their Stipulation, to make a

20

prospective showing of good cause. The Court has stricken their good cause

21

statement, because a specific showing of good cause or compelling reasons (see

22

below) for filing under seal, with proper evidentiary support and legal

23

justification, must be made with respect to each document or item designated as

24

“CONFIDENTIAL,” “HIGHLY CONFIDENTIAL,” “HIGHLY CONFIDENTIAL –

25

ATTORNEYS’ EYES ONLY,” or other designation(s) used by the parties, which a

26

party seeks to have filed under seal. The parties mere designation of any information,

27

document, or thing as “CONFIDENTIAL,” “HIGHLY CONFIDENTIAL,”

28

PROTECTIVE ORDER

1

“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” or other

2

designation(s) used by the parties, does not -- without the submission of competent

3

evidence, in the form of a declaration or declarations, establishing that the

4

material sought to be filed under seal qualifies as confidential, privileged, or

5

otherwise protectable -- constitute good cause.
Further, if sealing is requested in connection with a dispositive motion or trial,

6
7

then compelling reasons, as opposed to good cause, for the sealing must be shown,

8

and the relief sought shall be narrowly tailored to serve the specific interest to be

9

protected. See Pintos v. Pacific Creditors Ass’n, 605 F.3d 665, 677-79 (9th Cir.

10

2010). For each item or type of information, document, or thing sought to be filed or

11

introduced under seal in connection with a dispositive motion or trial, the party

12

seeking protection must articulate compelling reasons, supported by specific facts and

13

legal justification, for the requested sealing order. Again, competent evidence

14

supporting the application to file documents under seal must be provided by

15

declaration.
Any document that is not confidential, privileged, or otherwise protectable in its

16
17

entirety will not be filed under seal if the confidential portions can be redacted. If

18

documents can be redacted, then a redacted version for public viewing, omitting only

19

the confidential, privileged, or otherwise protectable portions of the document, shall

20

be filed. Any application that seeks to file documents under seal in their entirety

21

should include an explanation of why redaction is not feasible.
Notwithstanding any other provision of this Protective Order, in the event that

22
23

this case proceeds to trial, all information, documents, and things discussed or

24

introduced into evidence at trial will become public and available to all members of

25

the public, including the press, unless sufficient cause is shown in advance of trial to

26

proceed otherwise.

27

///

28

PROTECTIVE ORDER

TERMS OF PROTECTIVE ORDER

1
2
3

I.

GOOD CAUSE STATEMENT
[PARAGRAPHS 1 AND 2 OMITTED BY THE COURT]

4
5

II.

INTRODUCTION
3.

6

This Protective Order shall govern any document, information or other

7

thing, which is designated as containing “CONFIDENTIAL,” “HIGHLY

8

CONFIDENTIAL,” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

9

ONLY” information, as defined herein1 and is furnished by any party or non-party

10

in connection with the above-captioned action (“ACTION”). Documents and other

11

information produced in this ACTION and designated “CONFIDENTIAL,”

12

“HIGHLY CONFIDENTIAL, ” or “HIGHLY CONFIDENTIAL – ATTORNEYS’

13

EYES ONLY” shall be used only for purposes of this ACTION. The forms of

14

information which may be subject to this Protective Order include, but are not

15

limited to, documents and things, responses to requests to produce documents or

16

other things, responses to interrogatories, responses to requests for admissions,

17

documents subpoenaed in connection with depositions, deposition testimony and

18

exhibits, deposition transcripts, and all copies, extracts, summaries, compilations,

19

designations, and portions thereof (hereinafter referred to collectively as

20

“DISCOVERY MATERIALS”).
4.

21

All DISCOVERY MATERIALS produced in discovery in this case

22

and designated “CONFIDENTIAL,” “HIGHLY CONFIDENTIAL, ” or “HIGHLY

23

CONFIDENTIAL – ATTORNEYS’ EYES ONLY” shall be used solely for the

24

purpose of pre-trial proceedings (including, but not limited to, motions and

25

briefing), trial preparation and trial, and any appeals in the ACTION.

26
1

27

For the purpose of this , “HIGHLY CONFIDENTIAL” and “CONFIDENTIAL – ATTORNEYS’ EYES ONLY”
have the same meaning and effect and can be used interchangeably.

28

PROTECTIVE ORDER

1

DISCOVERY MATERIALS shall not be used for any business or non-litigation

2

related purpose whatsoever.

3

III.

4
5

DEFINITIONS
5.

The following definitions apply in this Protective Order:
(A)

The designation “CONFIDENTIAL” may be applied by any

6

party or third party to any DISCOVERY MATERIALS pursuant to this

7

ACTION that contain confidential material including, but not limited to: (a)

8

information pertaining to a third party which the party has an express or

9

implied obligation to keep confidential; (b) draft marketing and promotional

10

materials that have not been publicly disclosed; (c) personnel information;

11

and (d) all communications pertaining to the above named information,

12

including both physical and electronic correspondence.

13

(B)

Designation of confidentiality for any DISCOVERY

14

MATERIALS made by a party to this ACTION shall be a certification to the

15

Court and to the other parties that such information is believed to be

16

Confidential within the meaning of this Protective Order. Information

17

designated as “CONFIDENTIAL” in accordance with this provision shall be

18

treated as Confidential Information pursuant to the terms hereof until it

19

ceases to be covered by this Protective Order pursuant to a further Court

20

order or agreement of the parties.

21

(C)

The designation “HIGHLY CONFIDENTIAL” or “HIGHLY

22

CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” may be applied by a

23

party to highly sensitive forms of information, including, but not limited to:

24

(a) past or current financial information of a party; (b) trade secrets as

25

defined in Cal. Civ. Code § 3426.1(d) (which provides that the term “trade

26

secret” “means information, including a formula, pattern, compilation,

27

program, device, method, technique, or process, that: (1) Derives

28

PROTECTIVE ORDER

1

independent economic value, actual or potential, from not being generally

2

known to the public or to other persons who can obtain economic value from

3

its disclosure or use; and (2) Is the subject of efforts that are reasonable

4

under the circumstances to maintain its secrecy”); and (c) draft patent

5

applications, invention disclosures, and other information relating to the

6

filing and preparation of patent applications; and/or (d) extremely sensitive

7

“CONFIDENTIAL” information or items whose disclosure to another Party

8

or non-party would create a substantial risk of serious injury that could not

9

be avoided by less restrictive means. This designation shall be made as

10

sparingly as possible and shall be a certification to the Court and the other

11

parties that such information is believed to be subject to this more restrictive

12

classification within the meaning of this Protective Order.

13

(D)

“CONFIDENTIAL INFORMATION” refers to all information

14

which is subject to the designations “CONFIDENTIAL,” “HIGHLY

15

CONFIDENTIAL,” or “HIGHLY CONFIDENTIAL – ATTORNEYS’

16

EYES ONLY,” as described above.

17

(E)

“PARTY” means every party to this ACTION and every

18

director, officer, employee, and managing agent of every party to this

19

ACTION.

20

(F)

“ORDER” means this Protective Order.

21

(G)

The scope of this ORDER shall be understood and interpreted

22

to encompass not only those items or things that encompass

23

CONFIDENTIAL INFORMATION, but also any information derived

24

therefrom, and all copies, excerpts, and summaries thereof, as well as

25

deposition testimony and oral conversation derived therefrom or related

26

thereto.

27
28

PROTECTIVE ORDER

(H)

1

“PRODUCING PARTY” means a PARTY or non-party that

produces Disclosure or DISCOVERY MATERIAL in this action.

2

(I)

3

“RECEIVING PARTY” means a PARTY that receives

Disclosure or DISCOVERY MATERIAL from a PRODUCING PARTY.

4

(J)

5

“DESIGNATING PARTY” means a PARTY or non-party that

6

designates information or items produced in disclosures or in responses to

7

discovery as “CONFIDENTIAL,” “HIGHLY CONFIDENTIAL,” or

8

“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.”

9

IV.

DESIGNATION AND DISCLOSURE OF, ACCESS TO, HANDLING

10

AND FILING OF, AND OTHER PROVISIONS RELATING TO

11

DOCUMENTS, ITEMS, AND THINGS DESIGNATED AS

12

CONFIDENTIAL INFORMATION

13

A.

Designation

14

6.

The designation of CONFIDENTIAL INFORMATION shall be made

15

in the following manner:

16

(A)

For documents, as set out in Section H of this ORDER;

17

(B)

For tangible objects, by placing a label or tag on the object or

18
19

the container therefor or, if not practicable, as otherwise agreed;
(C)

For written responses to interrogatories or requests for

20

admissions, in writing, in the relevant responses or on the face of any such

21

responses;

22

(D)

23

For declarations or pleadings, in writing in the declaration or

pleading or on the face of any such declaration or pleading;

24

(E)

For depositions, as set out in Section I of this ORDER; and

25

(F)

For other oral disclosures (other than deposition testimony),

26

through confirmation in writing within ten (10) days of the disclosure.

27
28

PROTECTIVE ORDER

1

7.

It shall be the duty of the party seeking protection of the

2

CONFIDENTIAL INFORMATION to indicate to the other party and its attorney

3

of record which of the materials and testimony are considered confidential.

4

B.

Inadvertent Production

5

8.

Each party retains the right to subsequently re-designate documents

6

and to require such documents to be treated in accordance with such designations

7

from that time forward. An inadvertent or unintentional failure to designate

8

qualified information or items as “CONFIDENTIAL” or “HIGHLY

9

CONFIDENTIAL” will not be construed as a waiver, in whole or in part, of: (i)

10

any PARTY’S claims of confidentiality either as to the specific information

11

inadvertently or unintentionally disclosed or as to any other confidential material

12

disclosed prior or subsequent to that date; or (ii) any Party’s right to designate said

13

material as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” pursuant to this

14

ORDER. In the event of an inadvertent or unintentional failure to designate

15

qualified information or items, the DESIGNATING PARTY shall promptly notify

16

the RECEIVING PARTY that the information is “CONFIDENTIAL” or

17

“HIGHLY CONFIDENTIAL.” The DESIGNATING PARTY further shall

18

provide the RECEIVING PARTY with substitute copies of the affected documents,

19

marked with the appropriate confidentiality designation, at the expense of the

20

DESIGNATING PARTY.

21

9.

Upon receiving notice of the confidentiality designation of previously-

22

produced materials, the RECEIVING PARTY shall take reasonable steps to

23

retrieve and destroy all undesignated copies of the materials, and shall treat the

24

designated materials according to their confidentiality designation under this

25

ORDER. Prior to receiving notice of a change in designation by the

26

DESIGNATING PARTY, however, the RECEIVING PARTY shall not be

27

precluded from use of the information according to its then-existing designation,

28

PROTECTIVE ORDER

1

unless the RECEIVING PARTY had a reasonable basis for believing, and did

2

believe, that the previous designation is in error or mistaken. No PARTY shall be

3

deemed to be in violation of this ORDER with respect to the disclosure of any

4

DISCOVERY MATERIAL to any other persons prior to the designation of that

5

material as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” pursuant to this

6

ORDER.

7

10.

Inadvertent or unintentional production of privileged or work product

8

information will not be construed as a waiver, in whole or in part, of the privilege

9

or the work product status of the information inadvertently or unintentionally

10

disclosed. In the event of an inadvertent or unintentional production of privileged

11

or work product information, the PRODUCING PARTY shall promptly notify the

12

RECEIVING PARTY that the information is privileged or is work product. The

13

PRODUCING PARTY further shall provide the RECEIVING PARTY with

14

substitute copies of the affected documents in which the privileged or work product

15

information has been redacted.

16

11.

Upon receiving notice of the PRODUCING PARTY’s claim of

17

privilege or work product status of previously-produced information, the

18

RECEIVING PARTY shall take reasonable steps to retrieve and destroy all un-

19

redacted copies of the materials.

20

12.

Nothing in this section shall affect the right of a party to challenge a

21

confidentiality designation or a claim of privilege or work product through motion

22

practice.

23

C.

Access to CONFIDENTIAL INFORMATION

24

13.

Access to information marked "CONFIDENTIAL" shall be limited to,

25
26
27

and only to, the following persons:
(A)

Outside attorneys of record to any party in connection with this

ACTION, and, if the attorney of record is a member of a law firm, the

28

PROTECTIVE ORDER

1

employees and staff of the law firm (collectively “OUTSIDE COUNSEL”),

2

provided that before any such person is permitted access to any

3

“CONFIDENTIAL” information, such person shall be informed of the

4

existence and contents of this ORDER;

5

(B)

Organizations retained by OUTSIDE COUNSEL to provide

6

litigation support services in this ACTION, including, but not limited to,

7

court reporters, translators, third party photocopy or imaging services

8

contractors, third-party contractors producing graphic or visual aids involved

9

solely in providing litigation support services to OUTSIDE COUNSEL, and

10

jury consultants, provided that, before any such person is permitted access to

11

any of the CONFIDENTIAL INFORMATION, such person or a

12

supervising individual in his or her organization shall have signed the “Non-

13

Disclosure Agreement” (Exhibit A);

14

(C)

Independent outside experts and consultants retained in this

15

ACTION by OUTSIDE COUNSEL or a PARTY, provided that any such

16

actual or contemplated expert or consultant is not an employee of the parties

17

hereto, and subject to the conditions and requirements, including in Section

18

E, set forth in this ORDER;

19

(D)

The officers, directors, and employees (including In-House

20

Counsel) of the RECEIVING PARTY to whom disclosure is reasonably

21

necessary for this litigation and who have signed the “Non-Disclosure

22

Agreement” (Exhibit A), subject to the conditions and requirements set forth

23

herein;

24
25
26
27

(E)

The Court, its personnel, and any court reporters involved in

taking or transcribing testimony in court in this ACTION;
(F)

Such other persons as hereafter may be designated by written

agreement of the PARTIES in this ACTION or by order of the Court;

28

PROTECTIVE ORDER

(G)

1
2

Any mediator who is engaged to assist the PARTIES in

settlement negotiations on a confidential basis;
(H)

3

During their depositions, witnesses in the action to whom

4

disclosure is reasonably necessary and who have signed the “Non-Disclosure

5

Agreement” (Exhibit A); and
(I)

6

The author of the document or the original source of the

7

information, or persons to whom the document or copies thereof were

8

addressed or delivered.

9

D.

CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information

10
11

Access to “HIGHLY CONFIDENTIAL” OR “HIGHLY

14.

Access to information marked “HIGHLY CONFIDENTIAL” or

12

“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” shall be limited to

13

the persons identified in Paragraphs 13 (A), (B), (C), (E), (F), (G) and (I) above.

14

E.

Notification of Identities of Outside Experts and Consultants

15

15.

In connection with outside experts and consultants falling under

16

paragraph 13(C) above, each party shall disclose in writing to the other party, the

17

identity and curriculum vitae of each outside expert or consultant. Such curriculum

18

vitae shall identify all current and former employers and/or consulting

19

engagements of the independent expert or consultant within ten (10) years prior to

20

the date of such disclosure.

21

16.

If a party objects, in good faith, to an identified expert or consultant,

22

the party shall make its objections known in writing within seven (7) days of

23

receiving notification. The written objection shall also serve as the request for

24

conference under Central District of California L.R. 37-1. After receipt of the

25

objection, the party proposing the expert shall confer with the objecting party

26

within seven (7) days in a manner that satisfies its obligation under L.R. 37-1. If,

27

after good faith negotiations, agreement on the independent expert or consultant

28

PROTECTIVE ORDER

1

cannot be reached, the objecting party, as the moving party, shall have seven (7)

2

days after the conference referred to above to complete its portion of the joint

3

stipulation and to submit the same to counsel for opposing party in the manner

4

described in L.R. 37-2.2. The parties shall then complete the joint stipulation as

5

described in L.R. 37-2.2, and the objecting party, as the moving party, shall file the

6

joint stipulation no later than the day after it receives the signature of the counsel

7

for opposing party on the joint stipulation. In such a case, no disclosure of

8

CONFIDENTIAL INFORMATION of the objecting party shall be made to the

9

expert or consultant until the Court has ruled on the objecting party’s motion for

10

relief, and then only in accordance with the Court’s ruling. The party or person

11

wishing to disclose objecting party’s “CONFIDENTIAL,” “HIGHLY

12

CONFIDENTIAL,” or “HIGHLY CONFIDENTIAL-ATTORNEYS’ EYES

13

ONLY” information to the outside expert or consultant shall have the burden of

14

showing the disclosure would be proper and consistent with this ORDER. If a

15

party fails to make its objections known or fails to seek relief from the Court as

16

described in this section, its objection to an expert shall be deemed waived, and

17

CONFIDENTIAL INFORMATION may be disclosed to the expert or consultant

18

subject to the provisions of this ORDER. However, in no event shall a disclosure

19

of potential experts or consultants be deemed a waiver of any privilege or

20

immunity.

21

F.

Experts and Consultants

22
23

Disclosure of CONFIDETIAL INFORMATION to Outside

17.

Documents designated as “CONFIDENTIAL,” “HIGHLY

24

CONFIDENTIAL,” and “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

25

ONLY” may be shown to outside experts or consultants, together with their clerical

26

personnel, who are retained by a party in connection with the preparation for trial

27

or trial in this ACTION, provided that, before disclosure to any such expert or

28

PROTECTIVE ORDER

1

consultant, the person to whom such information is to be disclosed shall have

2

signed the “Non-Disclosure Agreement” (Exhibit A). The agreement of the expert

3

or consultant to be bound by Exhibit A shall be considered to apply to his or her

4

clerical personnel, and those personnel need not separately execute the non-

5

disclosure agreement.

6

18.

Drafts of any reports provided by such expert or consultant, as well as

7

communications between and among the expert or consultant, other experts or

8

consultants retained by the party, the attorneys for the party retaining the experts or

9

consultants, and the retaining party are not discoverable except to the extent that

10

the communications: (1) relate to compensation for the expert’s or consultant’s

11

study or testimony; (2) identify facts or data that the expert or consultant

12

considered in forming the opinions to be expressed; or (3) identify assumptions that

13

the expert or consultant relied upon in forming the opinions to be expressed.

14

19.

The foregoing notwithstanding, any such expert or consultant who is

15

an employee of a party or a competitor of any of the parties shall not be shown or

16

otherwise given access to documents or information designated as “HIGHLY

17

CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

18

ONLY.”

19

G.

Request for Additional Disclosure

20

20.

If any counsel of record desires to communicate to any person apart

21

from those permitted under Paragraphs 13 to 17 any information designated as

22

“CONFIDENTIAL,” “HIGHLY CONFIDENTIAL,” or “HIGHLY

23

CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” that counsel of record shall

24

first obtain the written consent of the designating party through such party's

25

counsel of record or obtain leave of Court for such communication. Each person

26

to whom the CONFIDENTIAL INFORMATION is to be given, shown, made

27

available, or communicated pursuant to this paragraph must execute a written

28

PROTECTIVE ORDER

1

confidentiality agreement in the form attached hereto as Exhibit A. Only after all

2

of the foregoing conditions have been fully satisfied may the CONFIDENTIAL

3

INFORMATION be communicated to any person other than those permitted under

4

Paragraphs 13 to 17.

5

H.

Manner of Designating Documents

6

21.

A party shall designate documents containing CONFIDENTIAL

7

INFORMATION by placing a legend in plain view on each page of any document

8

or thing that party wishes to protect against disclosure or use. This legend shall

9

state “CONFIDENTIAL,” “HIGHLY CONFIDENTIAL,” or “HIGHLY

10

CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” as appropriate. All

11

documents and things shall be marked prior to the provision of a physical copy

12

thereof to the other party.

13

I.

Manner of Designating Depositions

14

22.

In the case of a deposition, counsel for such party may, at the

15

commencement of such deposition, temporarily designate the entire deposition as

16

“CONFIDENTIAL,” provided, however, that where such an initial designation has

17

been made, the designating party, within fifteen (15) days after receipt of the

18

transcript, shall mark, as provided in this ORDER, those pages of the transcript as

19

such party shall then deem to be confidential, (the confidential designation of all

20

remaining pages being rescinded after such period), and shall notify the other party

21

in writing which pages are deemed CONFIDENTIAL INFORMATION. In the

22

event that such notice is not sent within said fifteen (15) days of the receipt of the

23

transcript, no portion of the deposition shall thereafter be confidential unless the

24

designating party thereafter notifies the other party that the failure to timely

25

designate occurred by oversight.

26
27
28

PROTECTIVE ORDER

1

J.

Filing Documents With The Court

2

23.

All information designated as CONFIDENTIAL INFORMATION

3

which is filed or lodged with the court, or any pleading or memorandum purporting

4

to reproduce or paraphrase such information, shall be accompanied by an

5

application to file the information, pleading, or memorandum or the portion thereof

6

constituting or containing the CONFIDENTIAL INFORMATION material under

7

seal in accordance with Local Rule 79-5.1 and directed to the Judge or to whom the

8

papers are directed. The CONFIDENTIAL INFORMATION shall be filed or

9

lodged in sealed containers on which shall be recorded the title to this action, the

10

general nature of the contents, the words “CONFIDENTIAL,” “HIGHLY

11

CONFIDENTIAL,” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

12

ONLY.” . . . Material found by the Court to warrant filing under seal will be

13

maintained under seal and shall not be made available for public review pursuant to

14

Local Rule 79-5.

15

K.

No Effect On Party's Own Use

16

24.

Nothing contained in this ORDER shall affect the right of a party to

17

disclose or to use any of its own CONFIDENTIAL INFORMATION as it desires.

18

L.

No Effect On Disclosure to Author or Addressees

19

25.

Nothing contained in this ORDER shall affect the right of a party to

20

disclose any CONFIDENTIAL INFORMATION to the author or addressees of any

21

document containing such information.

22

M.

No Applicability to Public Information

23

26.

The restrictions on dissemination of CONFIDENTIAL

24

INFORMATION shall not apply to: (i) persons in possession or knowledge of

25

such information prior to disclosure hereunder who, absent this ORDER, is under

26

no restriction regarding its dissemination, but only with respect to the

27

CONFIDENTIAL INFORMATION already in his or her possession or knowledge;

28

PROTECTIVE ORDER

1

or (ii) information which is public knowledge or which after disclosure, becomes

2

public knowledge other than through an act or omission of a party receiving the

3

CONFIDENTIAL INFORMATION.

4

N.

Legal Effect of Designations

5

27.

The designation by a party of any document, material, or information

6

as “CONFIDENTIAL,” “HIGHLY CONFIDENTIAL,” or “HIGHLY

7

CONFIDENTIAL – ATTORNEYS’ EYES ONLY” is intended solely to facilitate

8

discovery in this ACTION. This ORDER shall not prejudice the right of any party

9

to bring before the Court a motion, in compliance with Local Rules 37-1 and 37-2,

10

seeking a declaration that information produced by the other party has been

11

wrongfully designated as CONFIDENTIAL INFORMATION and should not be

12

subject to the terms of this ORDER. A party bringing such motion shall have the

13

burden of proving that the information designated as CONFIDENTIAL

14

INFORMATION is in the public domain or was in possession of the receiving

15

party prior to its disclosure through discovery in this action, or is otherwise not

16

appropriately designated as CONFIDENTIAL INFORMATION.

17

O.

Unauthorized Disclosure of CONFIDENTIAL INFORMATION

18

28.

If a RECEIVING PARTY learns that, by inadvertence or otherwise, it

19

has disclosed CONFIDENTIAL INFORMATION to any person or in any

20

circumstance not authorized under this ORDER, the RECEIVING PARTY must

21

immediately: (a) notify in writing the DESIGNATING PARTY of the

22

unauthorized disclosures; (b) use its best efforts to retrieve all copies of the

23

CONFIDENTIAL INFORMATION; (c) inform the person or persons to whom

24

unauthorized disclosures were made of all the terms of this ORDER; and (d)

25

request such person or persons to execute the “Non-Disclosure Agreement”

26

(Exhibit A).

27
28

PROTECTIVE ORDER

1

P.

Final Disposition of Action

2

29.

Within sixty (60) days after the final disposition of this ACTION,

3

including appeals, each counsel of record shall: (a) promptly return to counsel of

4

record for the DESIGNATING PARTY all CONFIDENTIAL INFORMATION

5

and all copies made thereof which are not in custody of the Court; or (b) promptly

6

destroy or see to the destruction of all writings related thereto, and certify to the

7

designating party that such destruction has been done. As an exception to the

8

above, counsel of record may retain a single file copy of any pleading, document

9

filed with the Court, written discovery response, expert report, transcript of any

10

deposition or trial testimony, together with all exhibits thereto, legal memorandum,

11

correspondence, or attorney work product, even if such material contains

12

CONFIDENTIAL INFORMATION. The copy of these retained documents shall

13

be treated as “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” and

14

counsel of record shall immediately notify opposing counsel of record of any

15

attempt by third parties to inspect and/or copy said documents.

16

Q.

Survival of Terms

17

30.

Absent written modification hereof by the PARTIES hereto or further

18

order of the Court, the provisions of this ORDER that restrict the disclosure and

19

use of CONFIDENTIAL INFORMATION shall survive the final disposition of

20

this ACTION and continue to be binding on all persons subject to the terms of this

21

ORDER.

22

R.

Violation of ORDER

23

31.

In the event anyone shall violate or threaten to violate any term of this

24

ORDER, the parties agree that the aggrieved party may immediately apply to

25

obtain injunctive relief against any such person violating or threatening to violate

26

any of the terms of this ORDER and, in the event the aggrieved party shall do so,

27

the respondent person subject to the provisions of this ORDER shall not employ as

28

PROTECTIVE ORDER

1

a defense thereto the claim that the aggrieved party possesses an adequate remedy

2

of law. The parties and any other person subject to the terms of this ORDER agree

3

that this Court has jurisdiction over such person or party for the purpose of

4

enforcing this ORDER. In the event that any CONFIDENTIAL INFORMATION

5

is disclosed by a receiving party in violation of this ORDER, the

6

CONFIDENTIAL INFORMATION shall not lose its status through such

7

disclosure, and the parties shall take all steps reasonably required to assure its

8

continued confidentiality.

9

S.

Subpoena in Another Action

10

32.

Nothing in this ORDER shall be construed as authorizing a party to

11

disobey a lawful subpoena issued in another action. Any PARTY, having received

12

CONFIDENTIAL INFORMATION that receives a subpoena or other compulsory

13

process seeking the production of all or some of those materials, shall promptly,

14

and before producing such materials, notify in writing:
(A)

15
16

The requesting party, court, or administrative agency of this

ORDER; and
(B)

17

Counsel for the DESIGNATING PARTY of the receipt of such

18

compulsory process and provide counsel for the DESIGNATING PARTY

19

with copies of that process.

20

T.

Right to Assert Other Objections.

21

33.

By having stipulated to the entry of this ORDER, no PARTY waives

22

any right it otherwise would have to object to disclosing or producing any

23

information or item on any ground not addressed in this ORDER. Similarly, no

24

PARTY waives any right to object on any ground to use in evidence of any of the

25

material covered by this ORDER. Nothing herein affects, in any way, the

26

admissibility of any document, testimony, or other evidence at trial or restricts the

27

use of information obtained from investigations, interviews, or other sources other

28

PROTECTIVE ORDER

1

than via the discovery process, motion practice, or voluntary disclosure of

2

information by any PARTY conducted under the terms of this ORDER.

3

34.

The Court will determine, in its sole discretion, how documents

4

designated as “CONFIDENTIAL,” “HIGHLY CONFIDENTIAL,” and/or

5

“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” will be treated

6

during the trial of this action. The PARTIES agree to request, prior to trial, that the

7

Court make an appropriate order to maintain the confidentiality of

8

CONFIDENTIAL INFORMATION to the extent practicable.

9

IT IS SO ORDERED.

10
11

DATED: October 31, 2011

12
13
14

___________________________________
MARGARET A. NAGLE
UNITED STATES MAGISTRATE JUDGE

15
16
17
18
19
20
21
22
23
24
25
26
27
28

PROTECTIVE ORDER

EXHIBIT A
NON-DISCLOSURE AGREEMENT

1
2
3

I,

4

1.

My address is

.

5

2.

My present employer is

.

6

3.

My present occupation or job description is

.

7

, declare under penalty of perjury that:

I HEREBY CERTIFY AND AGREE that I have read and understand the

8

terms of the Protective Order (“ORDER”) in the matter of Nano-Second

9

Technology Co., Ltd., Plaintiff, v. Dynaflex International, United States District

10

Court, Central District of California, Civil Action No. CV 10-9176 RSWL (MAN),

11

that I will not use or disclose to anyone any of the contents of any

12

CONFIDENTIAL INFORMATION received under the protection of the ORDER

13

except as permitted by the ORDER, and agree to be bound by the terms and

14

conditions of the ORDER.

15

I understand that I am to retain all copies of any of the materials that I

16

receive which have been so designated as CONFIDENTIAL INFORMATION in a

17

container, cabinet, drawer, room, or other safe place, and that all copies are to

18

remain in my custody until I have completed my assigned or legal duties,

19

whereupon the copies are to be returned or destroyed as specified in the ORDER. I

20

acknowledge that such return or the subsequent destruction of such materials shall

21

not relieve me from any of the continuing obligations imposed upon me by the

22

ORDER.

23

Dated:

Signed:

24
25

(print name)
26
27
28

PROTECTIVE ORDER